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Presumed Innocent: The Myth, The Mantra and Messiah | Deirdre Enright | TEDxCharlottesville


Translator: Tatiana Rozanec
Reviewer: Ri Corwin It was December 5th, around 7 pm, and Rica’s beauty salon was bustling
with the haircare needs of both the pre-weekend crowd
and the pre-holiday crowd. Fred was the owner and the master stylist, and he had had many, many,
many devoted patrons who came to him year after year. Fred was up in the salon
area cutting hair; Tracy, his assistant,
was in the sink area; and Joyce, one
of their many, many clients, who was five months pregnant, was, predictably, in the back room,
using the bathroom. The salon was decorated for the holidays, including a little,
jingly bell on the door that tinkled whenever the door opened. It was a stark contrast
to the cold, rainy December outside, and ten, twelve, other patrons
wandered around in other rooms, listening to music, watching TV,
or just reading magazines. Suddenly, the door opened. Two men walked inside,
both wearing disguises, and one pulled out a gun and said,
“This is a robbery.” Robber no. 1 immediately began
hustling people into the back room and asking them to lay down on the floor. Robber no. 2 went to the back
to get Joyce out of the bathroom. One man was taller and heavier
than the other man. They wore different clothes, but beyond that it was really difficult
to tell them apart because of the disguises. One man wore a dark hoodie, that he zipped
all the way up to cover his mouth. They both covered their heads. But the most significant thing
that they both did that night was wear big, dark sunglasses
with big, heavy frames. In order to get Joyce out of the bathroom, robber no. 2 decided that he would fire
the gun and bring her up front. The gun, of course, caused a woman who was
lying on the floor to start crying, and she prayed for God to help them. Robber no. 1 turned and sneered at her
and said, “Even God can’t help you now.” Now, I pause to remind you all
that if I was an omnipotent god, and some armed robber dared me like that
in the middle of an armed robbery, I would’ve not been able to resist
the opportunity to show him what a little taste
of divine intervention looks like. But God is better than me,
needless to say. And God probably thought,
“You know, the good people of Norfolk have a criminal justice system
that was built to handle this. They have due process, they have the burden of proof,
they have reasonable doubt, they have lawyers
appointed to the indigent, they have prosecutors who are duty-bound
to seek not just convictions, but justice. They have police force that could
help them every step of the way.” So, on balance, God probably thought, “Let it go, the criminal
justice system can handle it.” Two weeks later, on a Friday
– also on a Friday – Messiah Johnson and a friend
went out for a drink. They were going
to a favorite club: “Tailgaters”. They parked behind the club and walked up
the very dimly lit parking lot to go into the side
entrance of “Tailgaters”. As luck would have it, Messiah was wearing
his prescription eyeglasses. They were big, clear lenses
with big, dark frames. And, as luck would have it, Fred, the owner of the salon, was coming
up Granvy Street at just that minute. He was a passenger in a car
that was going 35 mph. As Messiah walked into the club, Fred caught a glimpse
of Messiah and his friend. Also unbeknownst to Messiah,
in that moment Fred concluded for sure that he had just seen the two people who had terrorized
his salon two weeks before. Fred and Messiah went
into the club to get their drink, and Fred hurried home, back to the salon, where Tracy, his assistant,
was still working. And Fred called 911. Now, a show-up ID and an eyewitness ID are two different things, and you don’t really need to know
what they are, to know what happens next. As the police went
into the club with Fred, Messiah and his friend were coming out. But they didn’t run. They walked to the corner
to a payphone to make a call. The show-up began right there. Police cars surrounded “Tailgaters”, they parked behind, they parked
on the side, they parked in front. When they realized Messiah
was no longer in the club, they had a K-9 unit
pull up to the payphone. And Messiah glanced over and noticed
that there was a shot gun drawn on him. He asked what was going on, and they said,
“You’re a suspect in a robbery.” Messiah said there was certainly
some mistake being made because they hadn’t robbed anybody. Police officers asked Messiah to step out
and be handcuffed behind his back, and to sit on the curb. He did. The police also went and got
Fred and Tracy, and put them in the back of a police car, and brought them past him at the payphone,
halfway down the block. And they asked Fred and Tracy to turn and look out the back
of the windshield of the police car. And then they asked Messiah
to step into the street and stand up for 20 seconds – handcuffed. “That’s him.” That’s what Fred said: “That’s him.” Of course, they took Messiah
to the police station, and, of course, they interrogated him, and, of course, he attempted
to explain what had happened. And it became clear to him pretty quickly
that nobody was going to listen to him, and he at that point said, “I know my rights. I’d like a phone call
so I can get a lawyer.” One of the law enforcement
officers said to him, “You don’t have a right to a phone call.” And he waited 21 days to meet his lawyer. Now, he met his lawyer
at his preliminary hearing, which was really
the first opportunity for Messiah to see these eyewitnesses
that had picked him out, and it was also the first time
to see his lawyer in action and see what he could do. Messiah knew that they must be
wrong or confused or mistaken because he knew he didn’t do it. And he was delighted to watch
at his preliminary hearing as they were confused,
and they contradicted themselves, and they contradicted each other. And at that point Messiah waited
for his lawyer to argue as he could have that there was no probable cause
to hold him any longer and that he could be let go. But his lawyer didn’t do that.
His lawyer simply sat there. And later Messiah would learn that there was another thing his lawyer
didn’t do at that preliminary hearing. And that was insist
that a court reporter be there and take notes of
what these eyewitnesses had said. So, now Messiah had lost a whole round
of court testimony about bad eyewitnesses. Messiah began using his own legal skills and wrote a very brief,
handwritten motion for the judge, asking that his court-appointed
lawyer be replaced. The judge was irritated
with Messiah and said, “You just dismissed an excellent lawyer,
a good lawyer, you’re letting him go.” Messiah prevailed. Months later that excellent, good lawyer
would have his law license suspended. Messiah’s family couldn’t take any more
of court appointed lawyers, and they pooled together their limited
resources and hired a lawyer. Messiah felt guilty,
asked them not to, but they said, “You need to let us do this.
We need this for our own peace of mind.” At Messiah’s trial he would learn
that there was now a third eyewitness. Joyce, who’d been in the back,
in the bathroom, was now also saying
that she recognized him as a robber. There was no testimony to use
against her at that point, but they got a big, big break
on cross-examination. They learned for the first time
that Fred and Joyce, who ID’d Messiah, had also been shown another array of
photos and had picked out another suspect, and had done that in front of a detective. The defense lawyer said
he’d never heard this before, the prosecutor said
she’d never heard it before. The judge asked everyone
to go find the pictures, find the detective,
find the alternate suspect. No one could. So when the defense said,
“We need a mistrial,” the judge agreed
and he granted the mistrial. At the second trial,
Messiah would also learn that the surprise for him that day was that in between the two trials
no one had gone to look for the photos, no one had gone
to look for the detective, and no one had gone
to find the alternate suspect. He wasn’t worried, of course, because he knew from the first trial
that that would result in a mistrial. But this was a new judge,
and this was a different, younger judge, and he denied the mistrial. Messiah still held on, and thought,
“This is OK, because I have an alibi.” In fact, Messiah had three alibis. He had three alibi witnesses. That night of the robbery, Messiah had been
with three different women. (Laughter) No, TEDx crowd, it’s not that! (Laughter) On the night of the robbery, Messiah had gone shopping
with two female friends at a mall on Military Highway in Norfolk. They’d been gone a couple of hours,
they made purchases, and then one of the women,
who had a very young daughter with her, offered to give Messiah a ride home
to his fiancée’s house. She lived there with her mother, she was eight months pregnant
with their child, and she had asked Messiah
if he would come after they shopped and let her braid his hair. He went. That sounds like reasonable doubt to me, but it didn’t sound
like reasonable doubt to the jury. And he was found guilty. He was found guilty
of six counts of robbery, six counts of abduction, and the abduction is moving people
from the front to the back of the salon. He was found guilty of twelve counts of use of a firearm
in the commission of a felony, one count for each of the felonies, but most shocking, he was found guilty
of shooting a gun in an occupied dwelling. Now, for those of you
who are playing on at home and have figured this out, don’t yell out the answer,
because I want to look smart. The jury had confused,
had combined the two robbers. Messiah was now robber no. 1 up front, cleaning out the cash doors,
stealing purses, taking valuables away from everyone, and he was also robber no.2 in the back,
shooting to get Joyce out. He was found guilty, and he was sentenced
to 132 years in prison. His lawyer filed his direct appeal,
and it was denied. Right then and there, that was as much due process
as the Commonwealth owed Messiah Johnson. He was done in the court system
as far as we were concerned. About three years ago,
his family contacted our clinic at the UVA Innocence Project
in Charlottesville, and said, “We are at the end
of our road, can you help?” Messiah, by the way,
was convicted, finally, in the year 2000. So, about three years ago, we said,
“We’ll see what we can do,” and we started our case
the way we always start our cases, which is by returning to the client the presumption of innocence
that has been taken from them. The obvious starting point
was the eyewitnesses, but as probably you can all guess, eyewitnesses don’t usually think
that they were wrong, and they don’t usually think
they’re wrong later on either. We went to them, and
Messiah’s case was no different. Fred was very polite, and very firm,
and he said, “I know what I saw.” Tracy had died six months
after the conviction even happened. Joyce was polite and told us she would talk to us
sometime in the future, but she never opened her door again. So, now we were left with the decision
of what we could do, if anything. And I learned a little lesson
from my Catholic mother when I was about nine years old, and I base our unofficial
clinic rule on this. My mother came into my room and caught me kneeling
beside my bed praying. I was very proud about that; I could then explain that what I was doing was praying for a really good grade
on a math test the next day. (Laughter) And she did what she can do well and
took my arm and yanked me up and said, “Oh, no, no, no, no, little lady!
That’s not how this works.” She said, “You do
everything humanly possible, and then you go ahead
and get back on your knees.” So our unofficial clinic rule is, I say to students
and my partner Jenny Givens says, “If you’re willing to pick up the phone and call Messiah and tell him we’ve
done everything we can do – by all means.” No one has ever taken us up on that. So we did what we do. We got a private investigator
and got all the law students. We said, “What if
we could solve this crime? What if we could actually
solve the crime?” They began culling
through archived newspapers, and we found articles that talked
about the two men in that neighborhood who were conducting
robberies at this time. And in fact, one of the newspaper articles said that they attributed
the Rica’s beauty salon robbery to this group of people
who were committing robberies. And, in fact, that was on the front page. Then we thought,
“Well, what if we could figure out the identities of these people?” So we filed Freedom
of Information Act requests, and, sure enough,
we got criminal incident reports, that just laid the whole story out
in black and white. There was a group of people committing
robberies in this neighborhood, and, in fact, they’d
committed one two hours before the salon at Rica’s was robbed. They had committed 18 armed robberies, and although the identity
of robber no. 2 varied, the identity of robber no. 1
was always the same. And we had his name. We went to where he was
in a Virginia prison, and we thought,
“What if he would talk to us?” We went in, we found out that we had
25 minutes to talk to robber no.1 – and I had expected several hours. So instead I got to be someone
I didn’t want to be and I had to walk into a room,
shake hands, and say, “Hi robber no.1,
my name is Deirdre, and this is a law student, we don’t have much time,
this can seem kind of rude, but I’ve a client, Messiah,
he’s a great guy. He said he didn’t do it: armed robbery, Ghent neighborhood,
Norfolk, disguises, y’know, any of this?” And quickly he cut me off and said,
“Oh, that, that sounds like me!” (Laughter) So robber no. 1 instantaneously
became our no. 1 robber. We visited him one more time,
and I lobbed my final Hail Mary and said, “Hey, no. 1 robber, you mind signing
an affidavit for all this?” And he said “Oh, yeah, sure,
I mean, you know, nobody should be in prison
for something they didn’t do!” (Laughter) So easy. And so, there it is. I’m not one of these people that says we should rip down
the entire criminal justice system and rebuild from bottom up. I don’t say that – yet. We are soon going to file
a petition for Messiah Johnson, and we hope that this will be his last lap
through the criminal justice system, and we would love for you all to follow us on our website
at the UVA Innocence Project to see how this goes for him. But I have several, just two or three, take-away requests
from you before I leave. And one is that if we work this, if this happens,
and we get Messiah released, please, please, don’t let
anyone ever tell you that this is an example
of how the criminal justice system works. Innocence Projects come in when the criminal justice
system has failed. The other thing I want you to be leery of
is the crowd that says: “But we get it right
most of the time, right?” Those are the people who say that wrongful convictions
are just these tiny little needles in these golden haystacks of guilty hay. We don’t know how often we get it right. When the conviction is final,
that’s when we stop looking! And final at that point
matters more than right. So be leery of those people. And, finally, we would ask you
to stay with us in this journey. Messiah Johsnson didn’t give up.
His family didn’t give up. His fiancée had their daughter
and raised her, and she’s about to go
to college this year. And we ask you to not give up
on the criminal justice system because there are plenty of law students
over there in law schools everywhere who can make this system better. So don’t give up on us
and don’t give up on Messiah. Thank you. (Applause)

Stephen Childs

4 Comments

  1. Insightful. Thank you for your dedication and passion for JUSTICE.

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